Article 21

Article 21
No person shall be deprived of his life or
personal liberty except according to the
procedure established by law.
 Important Words
• Person
• Deprived
• Life
• Personal liberty
• Procedure established by law
“Gopalan characterized as the ‘high water mark of legal positivism.”

“Maneka Gandhi case gave a backdoor entry to due process of Law.”

 Article 21
• V Amendment of the US Constitution

• “no person shall be deprived of his life, liberty or

property, without due process of law.”

• Article 21
• No person shall be deprived of his life or personal
liberty except according to the procedure established by
law.

• Immediately after the Constitution became effective, the

question of interpretation of these words arose in the
famous case of A.K.Gopalan case.
 A.K.Gopalan
v.
State of Madras
AIR 1950 SC 27
BENCH:
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
MUKHERJEA, B.K.
 A.K.Gopalan v. State of Madras AIR 1950 SC 27

• Petition Art. 32(1) of the Constitution of India for a

writ of habeas corpus against his detention in the
Madras Jail.
• The petitioner was detained under a Preventive
Detention Order.
• The validity of Preventive Detention Act, 1950 was
challenged.
 A.K.Gopalan v. State of Madras AIR 1950 SC 27

• Petitioner’s Contention
• The impugned legislation abridges or infringes the
rights given by Arts. 19-21
and
• is also not in accordance with the permissive
legislation on preventive detention allowed under
Arts. 22(4) and (7) and in particular is an
infringement of the provisions of Art. 22(5).
A.K.Gopalan v. State of Madras AIR 1950 SC 27

• The main question was

• “Whether Article 21 envisaged any procedure

laid down by a law enacted by a legislature, or
whether the procedure should be fair and
reasonable”?
 1.Meaning of ‘LAW”- Whether includes principles of
Natural Justice or merely enacted law

• Arguments on behalf of Petitioner

• The word “Law” in article 21 does not mean merely

enacted law but incorporates a principles of natural
justice so that a law to deprive a person of his life or
personal liberty cannot be valid unless it
incorporates these principles in the procedure laid
down by it.
 1.Meaning of ‘LAW”- Whether includes principles of
Natural Justice or merely enacted law
• SC rejected the argument and held that:-

• The word ‘law’ in Article 21 could not be read as meaning of natural

justice.

• These rules are vague and indefinite and the Constitution could not be
read as laying down a vague standard.

• No where in the Constitution the word ‘law’ was used in the sense of
abstract law or natural justice.

• The word ‘law’ was used in the sense of lex (state made law) and not
jus.

• The expression ‘procedure established by law’ would therefore mean

the procedure as laid down in an enacted law.
 1.Meaning of ‘LAW”- Whether includes principles of
Natural Justice or merely enacted law

• Dissenting opinion

• On the other hand, Fazl Ali,J., disagreeing with the majority

view, held that the

• “the principle of natural justice that ‘no one shall be

condemned unheard” was part of the general law of the
land and the same should accordingly be read into Article
21.”
 2. Relation between Articles 19,21 and 22
• Attempt was made by the petitioner to establish link between
these Articles.

• Petitioner Argument

• The reasonableness of the law of preventive detention ought to be

judged under Article 19.

• When a person was detained, his several rights under Article 19 were
affected and thus the reasonableness of the law, and the procedure
contained therein, should be justiciable with reference to article 19(2)
to 19(6).

Cont…..
 2. Relation between Articles 19,21 and 22
• Supreme Court rejected the arguements of petitioner and
pointed out that-

• The word ‘personal liberty’ in ARTICLE 21 IN ITSELF HAD A

COMPREHENSIVE CONTENT and ordinarily, if left alone, would
include not only freedom from arrest & detention, but also various freedoms
guaranteed by Article 19.

• Article 19 must be held to deal with a FEW SPECIFIC FREEDOMS

mentioned therein & not with freedom from detention whether punitive or
preventive.

• Similarly, Article 21 should be held as excluding the freedoms dealt within

Article 19.

• Article 20 to 22 constituted a COMPREHENSIVE CODE & embodied the

entire constitutional protection in relation to life & personal liberty .

• ARTICLE 20 TO 22 ARE NOT CONTROLLED BY ARTICLE 19.

 2. Relation between Article 19, 21 and 22
• The validity of a law authorizing preventive detention is not to be
adjudged with reference to the provisions of Article 19 but only by
the provisions of Article 22(4) to (7).

• ARTICLE 19 COULD BE INVOKED ONLY BY A FREE MAN &

NOT ONE UNDER ARREST.
• ARTICLE 19 COULD BE INVOKED ONLY WHEN A LAW
DIRECTLY ATTEMPTED TO CONTROL A RIGHT
MENTIONED THEREIN.
• Therefore, a law directly controlling a citizen’s freedom of speech
could be tested u/ Article 19(2).
• But Article 19 could not be invoked when a law not directly in respect
of a right mentioned therein infringed a right guaranteed by Article
19.

Cont…..
 2. Relation between Article 19, 21 and 22
• The judicial pronouncement means that a preventive
detention law would be valid and be within the terms of
Article 21, so long as it conformed with Article 22, and it
would not be required to meet the challenge of Article 19.

• Dissenting opinion
• On the other hand ,Fazl Ali, J. differing with the majority
held that,

• “article 19(1)(d) did control Article 21 & 22, because

juridicially freedom of movement was an essential
requisite of personal liberty, and , therefore the
reasonableness of the Preventive Detention act should be
justiciable under Article 19(5)”.
 3.
Due process of law
 3.Due process of law
• Petitioner Contention

• The expression ‘procedure established by law’ introduces into

India the American concept of procedure due process which
enables the courts to see whether the law fulfils the requisite
elements of a reasonable procedure.

• The expression ‘procedure established by law’ in Article 21 was

synonymous with the American concept of ‘due process of
law’ and therefore, the reasonableness of PDA ,or for that matter
,of any law affecting a person’s life or personal liberty , should be
justifiable in order to assess whether the person affected was
given a right of fair hearing.
 3.Due process of law
• Supreme Court rejected the contention giving the following
reasons:

– The word ‘due’ was absent in Article 21. This was a very
significant omission for the entire efficacy of the
procedural due process concept emanates from the word
‘due’.

– The draft constitution had contained the words ‘due

process of law’ but these words were later dropped and
the present phraseology adopted instead.

– The judicial decisions in the U.S.A on what was

reasonable had not been uniform.
 3.Due process of law
• S.C ruled that

• The expression ‘procedure established by law’

meant that procedure as laid down in the law as
enacted by the legislature & nothing more.

• A person could thus be deprived of his ‘life’ or

‘personal liberty’ in accordance with the procedure
laid down in the relevant law.
 3.Due process of law
• The court was thus concerned with the procedure as laid down in the statute.
• Whether the procedure was fair or reasonable, or according to natural justice or not was not the concern of the court.

• The ruling thus meant that to deprive a person of his life

or personal liberty-
• there must be a law;
• it should lay down a procedure; and
• the executive should follow this procedure while depriving
a person of his life or personal liberty.
 4. Personal Liberty
• Personal Liberty in Article 21 means nothing more than the liberty of the
physical body, that is, freedom from arrest and detention without the
authority of law. This was the definition of the phrase ‘personal liberty’
given by Prof. Dicey, according to whom personal liberty means freedom
from physical restraint and coercion which is not authorized by law.
• The word ‘liberty’ is a very comprehensive word and if interpreted it is
capable of including the rights mentioned in Article 19.
• But by qualifying the word ‘personal', the import of the word ‘personal
liberty’ is narrowed down to the meaning given in English law to the
expression ‘liberty to the person’.
• Articles 19 and 21 deal with different aspects of ‘liberty’.
• Article 21 is guarantee against deprivation (total loss) of personal liberty
while article 19 affords protection against unreasonable restrictions (which is
only partial control) on the right of movement.
• Freedom guaranteed by Article 19 can be enjoyed by a citizen only when he
is a freeman and not if his personal liberty is deprived under a valid law.
 A.K.Gopalan v. State of Madras AIR 1950 SC 27

• Gopalan Settled two major points in relation to article 21

➢ Article 19, 21, and 22 were mutually exclusive and

independent of each other and that Article 19 was not
apply to a law affecting personal liberty to which Article
21 would apply.

➢ A ‘law’ affecting life or personal liberty could not be

declared unconstitutional merely because it lacked
natural justice or due procedure. The legislature was
free to lay down any procedure for this purpose.
A.K.Gopalan v. State of Madras AIR 1950 SC 27

• The way article 21 was interpreted by the court meant

that Article 21 constituted a restriction only on the
executive which could not act without law and that article
21 was impotent against legislative power which could
make any law, howsoever drastic, to impose restraints on
personal liberty without being obligated to lay down any
reasonable procedure for the purpose.
 Gopalan’s Criticism
• Gopalan was considered as the ‘high-water mark of legal
positivism'. Court's approach was very static, mechanical,
purely literal and was too much coloured by the positivist or
imperative theory of law.

• The court treated the Constitution as merely another statute.

• K.Subba Rao, former CJI:

“The preponderance of view among the jurists is that it is
wrongly decided. It has in effect destroyed one the greatest
of the Fundamental Rights, i.e., personal liberty.”
 Relation between Article 19, 21 and 22
• R.C.Cooper v. Union of India, AIR 1970 SC 564)
• (Bank Nationalization Case )

• Judicial stand Prior to Bank’s Nationalization case

• Prior to this case, Article19 (1) (f) and 31(2) were
regarded as unrelated and mutually exclusive on the
analogy of Gopalan case.

• After Bank’s Nationalization case

• Rigid judicial view came to be softened.
• The beginning of new trend is to be found in this case.
 R.C.Cooper v. Union of India, AIR 1970 SC 564)
Bank Nationalization Case
• Bank Nationalization case a Precursor (pioneer) of the
trend to link Article 19, 21 and 22.

• In this case Article 19(1) (f) was applied to a law enacted

under Article 31(2).

• Since Article 31(2) had been drastically amended to dilute

protection to property, the court now established a link
between Article 19(1) (f) and Article 31(2) to provide some
protection to private property.

• This was a period when the Supreme Court was more solicitous (caring,
concerned, attentive) to protect the right to property than the right to
personal freedom.
 Relation between Article 19, 21 and 22
• After Bank Nationalization case, it could be legitimately
argued that if Article 19(1) (f) was linked with Article
31(2), then there is no reason why Article 19 could not be
linked with Articles 21 and 22.

• Sambhu Nath Sarkar v. State of W,B AIR 1973 SC 1425

• Supreme Court recognized the force of this logic when it

declared in Sambhu case that the
approach of the court in the Bank Nationalization case had
held the major premise of the majority in Gopalan to be
incorrect.
 Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106

• Article 19 applied only when a law was passed directly in

respect of a matter falling under it
• In Gopalan Case SC held that

• Article 19 applied only when a law was passed directly in

respect of a matter falling under it, and not when a law not
directly in respect of a right under Article 19, though it
abridged such a right.

• In Gopalan, Court emphasized that the question was only to

consider the ‘DIRECTNESS’ of legislation and not what
would be the RESULT of the law on a right under Article 19.

• Therefore, even though preventive detention deprived a person

of the several rights under Article 19, the validity therefore
could not be adjudged under Article 19.
 THIS VIEW WAS NO LONGER TENABLE AFTER
BENNETT COLEMAN.

• Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106

• In Bennett case court overruled the argument that Article
19(1) (a) could not apply to a law affecting freedom of
speech if not enacted directly with respect to Article 19(1)
(a).
• The court declared that that if a law affected freedom of
speech its reasonableness became assessable with
reference to Article 19(2) even though it was not enacted
directly to control the freedom of speech.
 Khudiram Das v. State of West Bengal, AIR 1975 SC 550

• Bhagwati, J., asserted:

• “it is not open to any one now to contend that

a law of preventive detention, which falls
within Article 22, does not have to meet the
requirement of Article 14 or Article 19”.
•
FACTS
Petitioner’s passport was impounded by the Central Government
under Section 10 (3)(c) of the Pass Port Act, 1967.
• The act authorised to so if it was necessary ‘in the interest of the
general public.’
• Petitioner challenged the validity of the said order on the
following grounds:
• 1. Section 10(3)(c) was violative of Article 14 as conferring an
arbitrary power since it did not provide for a hearing of the
holder of the passport before the passport was impounded.
• 2. Section 10(3)(c) was violative of Article 21, since it did not
prescribe ‘procedure’ within the meaning of that Article 21.
• 3. Section 10(3)(c) was violative of Article 19(1)(a) and (g)
since it permitted imposition of restrictions not provided in
clause(2) or (6) or Article 19.
 Maneka Gandhi v Union of India, 1978
• Inter-relationship between Article 19-21-22
• Article 14,19 and 21 are not mutually exclusive.
• Krishna Iyer,J- No article in the Constitution pertaining to a
Fundamental rights is an island in itself. Just as a man is not
dissectible into separate limbs , cardinal rights in an organic
constitution have a synthesis.(mixture, combination)
• “The law must therefore now be settled that Article 21 does not exclude Article 19 and
that even if there is a law prescribing a procedure for depriving a person of personal
liberty, and there is consequently no infringement of the fundamental right conferred
by Article 21 such a law in so far as it abridges or take away any fundamental right
under Article 19 would have to meet the challenges of that Article 19.

• Thus a law depriving a person of ‘personal liberty’ has not only

to stand the test of Article 21 but it must stand the test of Article
19 and Article 14 of the Constitution.
 Procedure Established by Law
• “Mere prescription of some kind of procedure is not enough
to comply with the mandate of Article 21.
• The procedure prescribed by law has to be fair, just and
reasonable not fanciful, oppressive or arbitrary; otherwise, it
should not be a procedure at all and all the requirements of
Article 21 would not be satisfied.
What is fair or just? A procedure to be fair or just must
embody the principles of natural justice. Natural justice is
intended to invest law with fairness and to secure justice.
• ‘Law’ should be reasonable law, and not enacted piece of
law”.
• Procedure in Article 21 means fair, not formal, procedure;
‘law’ is reasonable law and not any enacted piece.
 Personal Liberty
• ‘Personal liberty’ was given an expansive interpretation.

• The expression ‘personal liberty’ is of the ‘widest amplitude”

covering a variety of rights “which go to constitute the personal
liberty of man”: Some of these attributes have been raised to the
status of distinct fundamental rights and given additional
protection under article 19.

• The attempt of the court should be to expand the reach and

ambit of the fundamental rights rather than attenuate their
meaning and content by a process of judicial construction.”
 Right to live with Human dignity
• Right to ‘live’ is not merely confined to physical existence but it includes within its ambit the
right to live with human dignity.

• Francis Coralie v. Union Territory of Delhi, AIR 1978 SC 597

• Elaborating the same view the Court in Francis Coralie v. Union Territory of
Delhi, AIR 1978 SC 597, said that the right to live is not restricted to mere
animal existence. It means something more than just physical survival.

• The right to ‘live’ is not confined to the protection of any faculty or limb
through which life is enjoyed or the soul communicates with the outside
world but it also includes “the right to live with human dignity”, and all that
goes along with it, namely, the bare necessities of life such as, adequate
nutrition, clothing and shelter and facilities for reading , writing and
expressing ourselves in diverse forms, freely moving about and mixing and
commingling with fellow human being.
 Non-payment of minimum wages

• Peoples Union for Democratic Rights v. Union of

India, AIR 1982 SC 1473 (Asiad Projects case)
• Non-payment of minimum wages to the
workers employed in various Asiad Projects in
Delhi was a denial to them of their right to live
with basic human dignity and violative of
Article 21 of the Constitution.
 Right to Livelihood
• Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
• “Pavement dwellers case”
• The word ‘life’ in article 21 includes ‘right to livelihood also’.
• Challenged the constitutional validity of Sections 313, 313-A 314 and 497 of the
Bombay Municipal Corporation Act, 1888 was challenged which empowered the
Municipal Authorities to remove their huts from pavement and public places on the
grounded that their removal amounted to depriving them of their right to
livelihood and hence violative of article 21.
• “It does not mean merely that life cannot be extinguished or taken away as, for
example, by the imposition and execution of death sentence, except according to
procedure established by law. That is but one aspect of the right to life. An equally
important facet of that right is the right to livelihood because no person can live
without the means of livelihood. If the right to livelihood is not treated as a part of
the constitutional right to life, the easiest ways of depriving a person of his right to
life would be to deprive him of his means of livelihood. In view of the fact that
article 39 (a) and 41 require the state to secure to the citizen an adequate means of
livelihood and the right to work , it would be sheer pendentary to exclude the right
to livelihood from the content of the right to life.”
 Termination of Service of worker
• D.M.A.Yadav v. J.M.A. Industries, (1993) 3 SCC 258
• “Right to life enshrined under Article 21 includes right
to livelihood and therefore termination of service of
worker without giving him reasonable opportunity of
hearing is unjust, arbitrary and illegal. The procedure
prescribed for depriving a person of livelihood must
meet the challenge of Article 14 and so it must be
right, just and fair and not arbitrary, fanciful or
oppressive.
Right to Health and Medical Assistance

• Paramananda Katara v. Union of India, AIR 1989 SC 2039

• Vincent Parikurlangara v. Union of India, (1987) 2 SCC 165
• Paschim Bang Khet Mazdoor Samiti v. State of W.B, (1996) 4 SCC 37
• Consumer Education and research Centre v. Union of India, (1995) 3
SCC 42
• Kirloskar Brothers Ltd. V. Employees State Insurance Corpn., (1996) 2 SCC
682
• State of Punjab v. Mohinder Singh Chawla, AIR 1997 SC 1225
 Right to shelter
• Chameli Singh v. State of U.P, (1996) 2 SCC 549
 Right Against Delayed Execution
• T. V. Vatheeswaran v. State of T.N, AIR 1981 SC 643 [2]
– Delay in execution of death sentence exceeding 2 years would be
sufficient ground to invoke the protection of Article 21 and the death
sentence would be commuted to life imprisonment.
• Sher Singh v. State of Punjab, AIR 1983 SC 465 [3]
❖ Agreed with this view that prolonged delay in the execution of a dead sentence
was an important consideration for invoking Article 21 for judging whether
sentence should be converted into life imprisonment.
❖ Prolonged detention to await the execution of a sentence of death is an unjust
, unfair and unreasonable procedure and the only way to undo the wrong is to
quash the death sentence.
❖ This cannot be applied as a rule in every case and each case should be
decided on its own facts. (Overruled Vatheeswaran)
❖ The court should consider whether the delay was due to the conduct of the
convict , the nature of offence, its impact on the society, its likelihood of
repetition, before deciding to commute the death penalty into a sentence of
life imprisonment.
 Right Against Delayed Execution
• Triveni Ben v. State of Gujarat, AIR 1989 SC 142 [5]
– Undue long delay in execution of the death sentence will entitle the condemned
person to approach the court for conversion of death sentence into life
imprisonment, but before doing so the court will examine the nature of delay
and circumstances of the case.
– No fixed period of delay could be held to make the sentence of death in
executable.
– A person sentenced to death is also entitled to procedural fariness till his last
breath of life.
– Undue delay in execution of death sentence due to delay in disposal of mercy
petition by the President would certainly casue mental torture to the
condemened prisoner and therefore violative of Article 21. A condemned
prisoner has to suffer a degree of mental torture even though there is no
physical mistreatment and no primitive torture.
– In the present case the death penalty of the accused was converted into life
imprisonment.
 Right Against Delayed Execution
• Madhu Mehta v. Union of India, (1989) 4 SCC 62
• Delay 8-9 years. Following triveni ben judgement
death sentence was commuted to life imprisonment.
• Shatrughan Chouhan v. Union of India, AIR
• Which among the following is a supervening factors:
– 1. Delay
– 2.Solitary Cofinement
– 3. Mental Illness
– 4. Judgement per incurium
– 5. Procedural lapses
 Right to Privacy
• MP Sharma v Satish Chandra, 1950 (8)
• Kharak Singh v UP (1962) 6 (Subbarao Dissenting judge)
• Gobind
• R.Rajagopal v. State of Tamilnadu, (1994)6 SCC 632
– “Auto shanker case
• Maharashtra v. Madhulkar Narain, AIR 1995 SC 495
– Right to privacy available to a women of easy virtues
• People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568
Telephone tapping: an invasion on Right to Privacy
SC laid down the procedural safeguards for the exercise of power under section 5(2) of the Indian
Telegraph Act.
• Suchitra Srivastava v. Chandigarh Administration, AIR 2010 SC 235
Personal liberty includes right of women to produce child or refuse to participate in sexual act
• PUCL—Telephone Tapping
• Canara Bank—Customer Relations
• Selvi-Scientist test
• NALSA-Transgender’s test
• Ramjethmalani—Disclosure of bank accounts
• Mr X v Hospital z– Disclosure of HIV status
• Puttuswamy case
 Right to Die- Not a fundamental right
• State of Maharashtra v. Maurti Sripati Dubal, 1987 Cr LJ 549
• Bombay HC: Right to life guarantee by Article 21 includes right to die, and
consequently the court struck down Section 309.
• Cheena Jagadeeswar v. State of A.P., 1988 Cr LJ 549
• Right to die is not a FR within the meaning of Article 21and hence section 309 is
not unconsitutional.
• P.Rathinam v. Union of India, (1994) 3 SCC 394
• Justice Shai and Hansaria agreeing with the view of Bombay HC in Maruti Sripati
Dubal held that a person has a ‘right to die’ and declared section 309
unconstitutional. The right to live in article 21 includes the “right not to live”
– However, the court rejected the plea that ‘euthanasia )mercy killing) should be permitted by law.
The judges said that they would not decide this point as firstly it is beyond the scope of the
present petition and secondly also because in euthanasia a third person is either actively or
passively involved about whom it may be said that he aids or abets the killing of another person.
There is a distinction between an attempt of a person to take his life and action of some others
to bring to an end the life of a third person such a disticntion can be made on principle and is
conceptually permissible.
 Right to Die- Not a fundamental right
• Gian Kaur v. State of Punjab, (1996) 2 SCC 648
• Five judge bench overruled P.Rathinam’s case and held that ‘right to life” does
not include “right to die” or “right to be killed”.
• The “right to die” is inherently inconsistent with the “right to life” as is
“death with life”.
• Justice Verma observed:
– “ Any aspect of life which makes it dignified may be read into article 21
but not that which extinguishes it and is, therefore, inconsistent with the
continued existence of life resulting in effacing the right itself.”
– “Right to life” is a natural right embodied in article 21 but suicide is an
unnatural termination or extinction of life and, incompatible and
inconsistent with the concept of “right to life”.
• Aruna Ramchandra Shanbaug v. Union of India, AIR 2011 SC 1290
• Common Cause( A Regis. Society) V. Union of India, AIR 2018 SC 1665